Wow, is it Wednesday already?
This is the kind of party I like to host: other people show up and
help themselves. I'm online now, finally. We're in the first session of
the main program of CFP: a keynote address by James Bamford, author of
*The Puzzle Palace* and, just recently, *Body of Secrets*, both about
the NSA (National Security Agency). He's filling us in on how the NSA
works (70,000 pieces of mail through the facility per day, for
example), its history, and how it has to operate differently today than
in the information environments of decades ago.
They guy's *the* expert.

I was annoyed to discover I didn't have Ken Olthoff's email address on me so
I could send him mail annoyingly asking where he was (he's stuck in DC this
week). A meeting between Olthoff asnd Bamford would have been fun.
wg

bamford is telling us that he found out in his research for the new book
that the nsa hires employees short-term from eg cisco so tey can reverse
engineer products and try to figure out how to get into the internet.
bamford found this out becdause requested a lot of conference videotapes and
stff under foia, and left them playing as he worked...only to discover one
hadn't b een erased after its previous use and had recorded a private
conversation w/i the NSA talking about it.
hahaha.
He also says he thinks in general NSA is now complying with the law, though
it still needs to be overseen closely.
wg

I'm sitting in the same Bamford speech that bumbaugh is -- as always, this
guy is very good, although I'm hoping somebody will ask him about the
controversy surrounding his account in BODY OF SECRETS about the U.S.S.
Liberty incident.
I missed doctorow yesterday, but I hope he can be lured back to the
conference after his visit to the broadcast-protection-cabal meeting.

For those who don't know, some background on the USS Liberty:
"In 1967, the Israeli military attacked and destroyed the USS Liberty, a spy
ship that had eavesdropped on an Israeli massacre of surrendered Egyptian
soldiers in the Sinai. The ship's intercepts were destroyed, but the NSA also
had spy planes eavesdropping. The details, including President Johnson's
coverup to save the Jewish vote in the next election, were in a box in the
back of the NSA Museum. They were in a public place, but no one had bothered
to look at them before."
http://www.salon.com/books/review/2001/04/25/nsa/print.html
(Review of _Body of Secrets_ by Bruce Schneier)
Salon also has an account of the Liberty (and Bamford's research) at
http://www.salon.com/books/feature/2001/04/25/liberty/index.html
Web site re. the Liberty:
http://www.logogo.net/00liberty.htm

Stepping back to yesterday's events, briefly, here are some thoughts,
neither altogether random nor very well organized, on the Workshop on
Fair Use By Design, April 16, 2002, in advance of CFP.
One good thought from a speaker: Ann Bartow (U South Carolina Law)
talked about differences between what an institution's rules might say
and how the institution clearly expects people to behave. Very often,
institutional rules are so risk-averse that noone complies with them.
"Don't we deserve a copyright law that we can undertand and comply
with?" she asked. "When we look for a fair use doctrine," she said
later, "we should look at the ways people actually behave."
There was a good deal of discussion about the ambiguity of fair use
rules as against the precision normally needed in rules that we can put
on a chip. Some argued that the ambiguity is a good thing and gives
users more latitude. But it also means that users can't be sure whether
something is fair use or not. Quoth Fred von Lohmann (EFF), "The
ambiguity in fair use rules is a feature, not a bug." He also pointed
at an important issue in trying to embed fair use rules in technology:
the courts evlove fair use rules over time (he cited the Sony Betamax
case, as an example), but if the technology precludes taping, copying,
or whatever, no court ever gets to address the issue, and we risk
locking fair use in at a particular level, with no prospect of
evolution by the courts.
Most infuriating: technologists in the workshop who appear to have no
understanding what fair use is. The one that really set me off was Barb
Fox (Senior Architect for Crypto and DROM, Microsoft WebTV), who
asserted that the ability of a Digital Rights Management system to
classify users would be an important part of a solution to seeing to
fair use by design. This would mean, she said, that the technology
could authenticate a user as, say, a law professor, and grant sort of
"law professor" privileges over content. But whether a use is fair is
not even a partial function of who employs the user! I'm a professor,
and when I give my students photocopied excerpts of a copyrighted work,
for educational purpose, in a way that doesn't adversely affect the
market for the copyrighted work, and so on, there's good reason to
think that my use is fair use. This is so not because of ME, but
because of the USE. If I bootleg a new Microsoft operating system, sell
the CDs to my students, enlist them all as distributors for me, and so
on, there's good reason to think that my use violates copyright law.
"Hey, I'm a professor" is no kind of a defense.
Severine Dussolier (U Namur (Belgium)) gave a helpful introduction to
differences between the Fair Use doctrine in the United States, and the
situation in Europe -- both the European Directive on the matter and
the state of the law in various individual European nations. ONe
interesting takeaway thought: there's tremendous diversity among the
European nations in granting exceptions to copyright, such that, for
example, some but not all permit use for parody.
Trading fair use rights/exception for licensing or contract appeals to
some in the content industry, but seems to me a bad deal for consumers
of content, for reasons like those that Fred articulated about
evolving fair use as new technologies come along.
The workshop was well organized and made some headway, even though the
session aiming for closure seemed to break down a bit. (Maybe <wendyg>
can fill us in a little on how things came out.) People had done their
homework. This whole process is supposed to continue behind the scenes
and then break out onto the Web late spring or early summer. (I think
that's what Cindy Cohn of EFF told me.) An outline of the day's events,
and links to PDF versions of many of the participants' working papers,
are available at the CFP2002 site:
http://www.cfp2002.org/program/fairuse.shtml
My thinking was transformed some by the workshop.
Before the workshop, it seemed to me that the fundamental problems
that were supposed to be addressed really require political solutions,
rather than technical ones. As a technical matter (and this realization
is by no means unique to me), the intellectual property interests have
the fundamental problem that general purpose computers, controlled by
users/readers/viewers/consumers of content, can be bent to those users'
will. If my PC is going to play a DVD of, say, *Hackers*, *somewhere
in there* at *some point in time* the bits that represent the movie
*Hackers* have to be kicking around. So, if I can communicate with
smart people who have written a program to capture those bits, I can
install the program, capture the bits, and do what I want with them.
So, intellectual property interests have cleverly turned to the
political system to criminalize or otherwise ban such things, and we
probably need to work the politcal arena to protect our rights to
control our own PCs and so on. That's what I thought was the biggest
stumbling block to progress before the workshop.
As we neared the end of the workshop, I began to see that there was a
kind of social problem that cuts deeper still than the political
problem I had worried about before. As we moved to war up, Jennifer
Granick led the discussion, asking, "What does a copyright holder
want?" Now, it seems to me that that depends on the copyright holder.
Individual authors are a mixed and somewhat complicated bag: they may
seek prestige, the sheer joy of self-expression, or filthy lucre. A
publisher, on the other hand, wants mainly money. How do publishers get
money? Many ways: sales of widgets with copies of the content,
subscription, licensing of characters, translation rights, performance
rights, copying, whatever. A given Digital Rights Management scheme, it
seems to me, is likely to be better suited to protecting some of these
than others, and, hence, likely to have the effect of standardizing
the business model for publishing. Given standardization around a given
DRM scheme, publishers (including individual authors) cannot choose
which means to pursue to get what they want. Moreover, publishers (the
ones motivated by money) are forced to settle for one, or some limited
number, or revenue streams and must potentially forego all others.
Think about what detailed features different publishers would care
about. A commercial broadcaster would prefer that viewers not easily be
able to skip 30 seconds forward in a program. A music seller or
pay-tv-network operator either doesn't care or might oppose such a
limitation. Music sellers would prefer to sell multiple units to
consumers--cassette, CD, another for the car, one more for the portable
digital player. Book publishers and commercial broadcasters don't so
much care about that since they aren't selling units (except insofar as
it impacts syndication, sales of series on DVD later, or other
secondary rights).
So, at the end of the day, I found myself thinking that this social
"problem"--the diversity of business models for publishers and their
likely unwillingness to give up any potential stream of revenue--was an
equally serious stumbling block to user-friendly progress on fair use
by design.

this is why I proposed that in fact there should be three wish lists, not
too, with one being for creators, who want very different things than
rightsholders (and they are only rarely rightsholders these days, if they're
working at all in the commercial world)., Someone asked what would be on
their list that wasn't on the other two, and I said, to build a community
around their work that they can communi cate with -- also, of course, to
make a living from their work (which rightsholders don't really care that
much about, since they often see individual artists as interchangeable.)
wg

We're at a momentary pause between lunch and the (first? I forget how many
are scheduled) afternoon session.
Check that: Diane Ditzler (US Postal Service) is introducing the session on
the USA Patriot Act.
Our luncheon speaker was Timothy Muris, the Chairman of the Federal Trade
Commission. In the main, he gave a pretty standard "rubber chicken circuit"
talk. He reviewed various initiatives and accomplishments of the Commission
since he assumed the chair last year.
Worth noting: the FTC is working with some in Congress on legislation on
identity theft, Social Security Numbers, and SPAM.
He talked about the proposed National "Do Not Call" registry.
There's supposed to be a means to report SPAM you recieve at uce.ftc.gov.

Hey, I was about to post that!
I gathered by his comments that he considers spam about
99% synonymous with fraud. Meaning he doesn't want to get tough on
"legit" opt-in commercial mail, much as that is abused, or confusing, too.
He didn't want to make a rule about having to alert people if a company
is to unilaterally change a site's policies, for example, as in
the recent yahoo debacle.

logging in from the conference floor... Proxim is providing 802.11a/b
connectivity for the conference, including loaner pcmcia cards for the
technologically backwards peasants (like me) who have yet to embrace
the wonders of wireless... I admit, it's kinda cool! I wonder if I can
trade sends with someone else on the conf. floor.
re: Muris... while I was gratified to hear the FTC is pursuing its plan
for a Do Not Call registry for telemarketers, but I thought his
presentation, overall, was nothing new and certainly nothing
agressive... while he took some shots at the easy targets of
telemarketers and spammers, most of his descriptions of FTC
achievements so far were of the model where industry self-polices and
when it "makes mistakes" FTC steps in with corrective action... the
thing that bothered me was the underlying assumption of lack of malice
and greed as motivations... no surprise, I guess, for this
administration...

Yes, you can trade sends w/ someone else onthe conference floor.
I though the FTC speech while canned was OK. I think it's reasonable to
target the things they're targeting. It isn't the FTC's job, is it|?, to
tackle security?
Was entertained by the Yes,Minister like meltdown when I asked how much of
the big drop he cited in the use of third-party cookies had to do with the
death of online ad vertising generally. He corrected me that it wasn't a
death, but a decline, and then segued into a sort of frenzy of unrelated
stock phrases.
wg

Quite a bit of focus in this session on the fall of the wall of separation
between domestic and foreign (for Americans) in terms of rights and agency
policies after 9/11.
Interesting image. Including questions such as whether that wall already
fell when internet email emerged in the US as arguable "international" by
its very nature.

yup... and he's getting very exercised about it... in fact, I think someone
is going for the firehose... give 'em hell, <mnemonic>!
reply was that, au contraire, they did have public review and six weeks is
really not unusual to pass such legislation... ha! six weeks to eviscerate
civil rights... what an achievement...

Another interesting comment -- someone please help me with who said it --
is that the text of the Act was a moving target and the law didn't exist for
the purpose of review ot comment until the afternoon it was passed. Hmmm!

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